This vote was on a motion to kill an amendment by John Cornyn, R-Texas, that would prohibit state attorneys general from paying private lawyers contingency fees as part of federal consumer product safety cases. A lawyer who works on a case with a contingency fee means that, in essence, the lawyer has agreed to take a portion of any judgment paid out as a result of the case as payment for his services. The amendment was offered to a bill that would overhaul the Consumer Product Safety Commission (CPSC).

Cornyn said contingency fees make sense when a person cannot otherwise afford a lawyer, but that governments have no reason to use them and therefore should not be able to. Cornyn said this is to ensure transparency and prevent abuse.

“This is not a case of a person who cannot afford to hire a lawyer unless they hire them using a contingency fee. We are talking about the Federal Government. We are talking about the State governments,” Cornyn said. “And I think there are important reasons to make sure the people who represent the [government] are accountable to the public and are not only in it as bounty hunters seeking to maximize their recovery without any sort of political accountability. That lack of political accountability happens when lawyers for the Government outsource their responsibilities, or at least the job of suing, to private lawyers but without any political accountability associated with it.”

Patrick Leahy, D-Vt., said the real effect of Cornyn’s amendment would simply be to tie the hands of states’ attorneys general, and that it is not Congress’ place to legislate the matter.

“I have been here long enough to remember a time when principles of federalism and deferring to State governments meant something in this great Chamber. State elected officials are accountable to their citizens. If the State voters do not like the way a State attorney general is staffing cases, that is easy—just don’t reelect him or her. But Senator Cornyn’s amendment would make the staffing decision for all State attorneys general, whether it is in Vermont or New Hampshire or Arkansas or Texas or anywhere else,” Leahy said.

By a vote of 51-45, the Senate killed Cornyn’s amendment. All but three Republicans present voted to preserve the amendment (Orrin Hatch and Arlen Specter of Pennsylvania and Gordon Smith of Oregon). Every Democrat present voted to kill the amendment. The end result was that the amendment that would have prohibited states attorneys general from entering into certain contracts with private attorneys was defeated and debate continued on the bill itself.